JUDGMENT OF DEVERELL, J.A.
This is an appeal against the decision of Onyango Otieno J. (as he then was) in HCCC No 312 of 2001 in which the learned Judge declined to strike out the suit against 3rd and 4th defendants who are now the 1st and 2nd appellants herein. The appeal arises from the existence of two separate suits involving the same parties one filed after the other giving rise to claim that the later suit should be struck out on the basis of res judicata and breach of section 7 of the Civil Procedure Act Cap 21 Laws of Kenya.
High Court Civil Case 883 of 1998 was filed on 28th December 1998, (hereinafter the “First suit”). The plaintiff was Shah Hirji Manek Ltd., which is the 1st respondent to this appeal. The claim was for Shs. 11,143,330/- plus interest and costs. In the Amended Plaint the 1st respondent pleaded that it was the holder in due course for value of two promissory notes made by Ukay Estate Ltd., which is the 1st, appellant.
The two Promissory Notes, numbered 406 an…